Version V1.6

IMPORTANT – READ CAREFULLY:

This End-User License Agreement (Agreement) is a legal agreement between You, the end user (“You”) and Infomedia Ltd of Sydney, Australia (Infomedia). You must accept all the terms and conditions of this Agreement without modification. If You do not agree to these terms and conditions in their entirety, You are not authorized to use or access the Service.By using or otherwise accessing any part of the Service, You acknowledge and accept the following terms and conditions and as amended from time to time at the unilateral discretion of Infomedia.

BACKGROUND

  1. Infomedia has developed and commercialized the Services.
  2. The Automaker has agreed to provide and has licensed Infomedia to process and supply certain data relating to parts and components belonging to motor vehicles marketed and distributed by the Automaker and the Automaker’s authorized distributors. That data may be incorporated in one or more instances of the Service(s)
  3. You represent that You are an Authorized User and desire to use the Services in accordance with the terms of this Agreement.
  4. Infomedia has agreed to grant You a, non-exclusive non-transferable license to use the Services and the Information (as updated from time to time) subject to the terms and conditions set out in this Agreement.

1. DEFINITIONS:

The following terms shall have the meaning set forth in this Agreement.

Aggregate Data means de-identified and anonymized sets of data that have been gathered by Infomedia for expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any information that could be used to identify, or re-identify, You; Your clients or customers; any products, goods, or services provided by You; or any locations in which You do business.

Authorized Supplier means Infomedia or any of its authorized distributors.

Authorized User means a person or entity which is:

  1. authorized to use the Information (including underlying data) and the Service by the Automaker or by one of its authorized representatives; and
  2. is engaged in the business of supplying or using the Automaker’s parts, or repairing vehicles manufactured by the Automaker; and
  3. to the extent an Interface is offered, a person or entity holding a valid license or other such right to use any third-party software to which the Interface connects.

Account Credentials means any combination of the unique login details, and passwords, codes, security dongles, and / or any other similar devices given to You by an Authorized Supplier, which allows You to access the Service online or which permits access to the Service.

Automaker means the original equipment manufacturer entity who is identified at the start-up of the Service, and who is the owner or rightful licensee of the technical information included in the definition of underlying data that forms the Information.

Customer Data means any information uploaded to Infomedia’s systems by You or Authorized Users, the resulting unique output that is generated by the Services when processing the uploaded information, and any information provided by You in connection with its use of the Services.

Fees means the subscription price and all other charges agreed to from time to time, and payable to the Authorized Supplier on a monthly in advance basis by You for use of the Service in accordance with Section 6 of this Agreement;

Information means the information pertaining to parts, prices and update information for motor vehicles marketed and distributed by the Automaker, and made available via the Service to You by Infomedia in human and machine readable form from time to time.

Intellectual Property means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.

Interface means the proprietary processes and systems developed by Infomedia or any other third party, including but not limited to, software, hardware, specifications, data formats, security codes and other Intellectual Property, allowing for the transfer of data between the Service and any third party system or systems.

Service(s) means the, proprietary ‘software as a service’ owned and developed by Infomedia which You have agreed to pay a fee to use, and which is supplied to You pursuant to this Agreement, and includes without limitation any Interface offered in conjunction with the Service. This definition shall be deemed to include all user interfaces and designs, printed materials, images, data, data formats, processes, software, hardware specifications, security codes and other Intellectual Property, including any updates and revisions to any of the foregoing made available as part of the Service and/or the Interface (as applicable).

User Content means any user notes, information, instructions, or any other form of user generated content, suggestions or enhancements which may be developed, added to or incorporated with the Service by end users.

User Equipment means computer equipment and/or compatible devices, internet access with sufficient bandwidth to use the Service and minimum specifications required to run the Service as displayed here or as separately advised by Infomedia.

You means you the licensee who is party to this Agreement, including any of your employees, agents, contractors, representatives and/or assigns.

2. TERM

2.1 This Agreement commences on your initial use of the Service and continues until the Agreement is terminated pursuant to its terms or by operation of law (Term). Your right to access the Service is subject to the payment of the Fees.

3. PROPRIETARY RIGHTS

3.1 Infomedia’s Intellectual Property: You acknowledge that all Intellectual Property rights, including without limitation all copyright and all other rights of ownership and goodwill in all parts of the Service and any replacement, update or modification of any part of the Service, including any derivative works, remain the sole and exclusive property of Infomedia and/or its rightful licensors. The Service and/or any Interface provided under this Agreement may contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this License as an intended third-party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third-party licensors.

3.2 Grant of Licence: Infomedia hereby grants to You a non-exclusive, non-transferable license to use Service during the Term on the terms of this Agreement, subject to:

  1. Your ongoing compliance with the terms and conditions set out in this Agreement (including but not limited to the payment of the Fee); and
  2. Your continuing status as an Authorized User.

3.3 Suggestions: You agree that if you make any suggested improvements to the Services that You grant Infomedia a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements.

3.4 Your Data: You retain all ownership rights in Your Data, Your Personal Information, and Your Confidential Information, including any Intellectual Property rights therein. Infomedia may use Your Data solely (i) for internal use in order to maintain, evaluate, develop, and improve its Services; (ii) to respond to a support request; (iii) to fulfil its obligations under this Agreement; or (iv) to comply with Applicable Laws. Nothing in the Agreement transfers or conveys to Infomedia any ownership interest in or to Your Data or Your Confidential Information.

3.5 Aggregate Data: Infomedia may use Aggregate Data for any purpose to the extent that it complies with this Agreement, including the confidentiality obligations.

3.6 Automaker Copyrights: The underlying data in the Service and/or any Interface provided under this Agreement may contain copyright owned by third party licensors (refer copyright notices) and such licensors will be entitled to enforce this License as an intended third-party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third-party licensors.

4. USE OF THE SERVICE

4.1 You must ensure all employees, agents, contractors, representative and/or assigns are competent, trained in the use of the Services and comply with the terms of this Agreement. Some instances and/or features of the Service are suitable for use only by suitably qualified vehicle service technicians and should only be operated by such parties.

4.2 You may only access the Service if You have paid and are current with all Fees.

4.3 The Service is offered on an ‘as is, where is’ basis. The Service will be supplied in the format and configuration determined by Infomedia. You must not attempt to utilize the Service (or any Interface offered as part of the Service) in order to establish any ability to interface, inter-operate with or transfer data to or from, any other third-party system other than as per the configuration in which the Service is offered to You by Infomedia.

4.4 You shall not at any time:

  1. use of any part of the Service or the Information for or on behalf of any unauthorized person, entity or organization, nor permit any unauthorized person, entity or organization to utilize, obtain or copy and part of the Service, Your Account Credentials or the Information. You must not lend, sub-license, pledge rights to or grant access to the Service to any third parties whatsoever;
  2. make or permit to be made any additions or modifications to the Service and/or the Information. Any unauthorized modifications to the Service may be considered an infringement of copyright and other intellectual property laws;
  3. attempt in any manner to copy, reverse engineer, decompile or disassemble the Service or any part of it, whether manually, by the use of robotic scripts or any other automated tool or process or any other means whatsoever; and
  4. access the Information by any means other than via the Service interface provided.
  5. permit, induce or otherwise encourage any other person or party to do anything of the things prohibited by this clause.

Any misuse or attempt to alter the scope of the Service or any Interface shall be deemed a material breach of this Agreement.

4.5 You must at your cost provide and maintain the User Equipment to access and use the Service.

4.6 Upon subscribing to the Service, the Authorized Supplier will provide You with Account Credentials allowing You to access the Service using the Account Credentials via Your User Equipment. You acknowledge and accept that You are solely responsible for maintaining the strict confidentiality of Your Account Credentials and for restricting access to Your Account Credentials. You further acknowledge and accept that You will be deemed responsible for any and all activities that occur in connection with Your Account Credentials.

4.7 If You become aware of any unauthorized use of the Service or Your Account Credentials, You must immediately notify the Authorized Supplier by email to legal@infomedia.com.au and co-operate with any investigation conducted by Infomedia.

4.8 Infomedia may, in its sole discretion, monitor, restrict, suspend, limit or alter any Account Credentials which Infomedia reasonably suspects may have been compromised and shall not be liable for any loss or damage caused by unauthorized use of any compromised Account Credentials, or by any inability to use or access the Service.

4.9 You must ensure that You implement appropriate technical, administrative and physical safeguards and security measures designed to prevent any unauthorized access to Your Data, any personal information or any Intellectual Property owned by Infomedia, the Automaker or any third party. This includes without limitation appropriate security measures to prevent unauthorized access to the Services which will be in addition to any security measures implemented by Infomedia.

5. DATA UPDATES AND SUPPORT

5.1 Infomedia may offer updates to the Service from time to time, including updates to the data supplied by the Automaker. Infomedia is under no obligation to perform, make or develop any specific enhancements to or customization of the Service.

5.2 Infomedia may provide telephone hot-line and/or email support services during normal business hours in your region. Infomedia may, at its sole discretion, investigate and, to the extent possible, correct any failure of the Service to meet its published specifications, provided that:

  1. You can recreate and demonstrate any alleged failure;
  2. You give prompt notice to Infomedia after any such failure becomes known;
  3. the operating system and the User Equipment are operating correctly; and
  4. failure is not due to the User Equipment, accident, abuse or misuse of the Service, unauthorized access or the fault of third party services or software not licensed by Infomedia, user training or error, recovery of data or any events caused by force majeure.

5.3 Any replacement, update or modification of any part of the Service shall become part of the Service and Your rights to use such replacement, update or modification shall be governed by the terms of this Agreement. Any reference to the Service in this Agreement shall include all such replacements, updates and modifications from time to time.

6. PAYMENTS

6.1 You agree to pay the Fees together with any Taxes for use the Service in advance basis and in accordance with the Authorized Supplier’s standard payment terms and conditions (including any terms printed on any invoice issued by the Authorized Supplier from time to time).

6.2 Non-payment of the Fees as and when due may result access to the Service being restricted or this Agreement being terminated as per Section 7 below.

7. TERMINATION

7.1 You may terminate this Agreement at any time by sending a notice to legal@infomedia.com.au. which will be effective the greater of a) 90 days or b) if you have a current subscription, at the end of that subscription. All outstanding Fees must be paid at the time of termination, including the full amount payable for the balance of the subscription. No refunds will be payable to You for any unused portion of your Fees.

7.2 Infomedia shall be entitled to terminate this Agreement if You breach any Term of this Agreement and do not remedy the same within 30 days after notice by the Authorized Supplier.

7.3 Infomedia may immediately and without any notice to You, exercise a right to suspend or terminate this Agreement in the event that:

  1. You are in arrears in payment of Fees in accordance with this Agreement;
  2. You infringe any Intellectual Property vested in the Service, allow others to misuse Your Account Credentials or engage in any act or omission that would be a material breach of clauses 4.4 and/or 4.5 of this agreement, or if Infomedia reasonably suspects that You may have done one or more of these things;
  3. You become subject to any receivership, administration or liquidation;
  4. Infomedia loses its license to the underlying data or any component of the Service; or
  5. Your use of the Service would or is likely to violate any applicable laws, or is in breach of any applicable trade sanctions.

7.4 If You lose authorization from the Automaker to access the Information, You must disclose that fact to us without delay and cease to use the Service and this Agreement automatically terminates.

7.5 If this Agreement is terminated Your Account Credentials will be disabled without further notice and You must immediately cease using the Service. Infomedia shall not be liable howsoever arising from the suspension, cancellation or termination of this Agreement or the disabling of Account Credentials.

8. WARRANTIES, ACKNOWLEDGEMENTS AND LIABILITY

8.1 LIMITED WARRANTY – Infomedia warrants that the Service will perform substantially in accordance with its published specifications for the Term.

8.2 INFOMEDIA DOES NOT WARRANT ANY OF THE FOLLOWING MATTERS:

  1. that the Service, the Information, or the User Content is correct, accurate or error free;
  2. the accuracy or completeness of the underlying data supplied to it by the Automaker;
  3. that the User Content will be available or retrievable following expiration or termination of this Agreement (and You should maintain backups as appropriate); or
  4. that the access to, operation or use of Service will be timely, secure, uninterrupted or error-free.

8.3 You acknowledge and warrant that You have relied on Your own commercial analysis and judgment in selecting the Service and have not relied on any promise, representation, warranty or undertaking made or given by the Authorized Supplier in relation to any results, consequences or benefits to be obtained from the use of the Service.

8.4 You undertake that You and/or Your Users:

  1. will not at any time use the Service, or any reports generated by or Information extracted from the Service, in a way likely to mislead or deceive, cause confusion, or prejudice the distinctiveness or value of the Service, or likely to prejudice the goodwill or reputation of Infomedia, the Automaker or any other party; and
  2. will comply with all the requirements of this Agreement and all applicable laws, standards, regulations in the use of the Service.

8.5 You will indemnify and hold Infomedia harmless against any claim, liability, loss, damage, cost or expense that Infomedia may incur as a result of Your act or omission under clause 8.4.

8.6 REMEDIES – TO THE EXTENT PERMITTED BY LAW, IN THE EVENT OF A BREACH OR DEFAULT BY INFOMEDIA OF ITS OBLIGATIONS UNDER THIS AGREEMENT, INFOMEDIA’S AND ITS AUTHORISED SUPPLIER’S ENTIRE AND AGGREGATE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT INFOMEDIA’S OPTION, EITHER:

  1. REPERFORMANCE, REPAIR OR REPLACEMENT OF THE SERVICE THAT DOES NOT MEET INFOMEDIA’S LIMITED WARRANTY, OR
  2. RETURN OF THE FEE PAID BY YOU, CAPPED AT A LIMIT OF THREE MONTHS’ SUBSCRIPTION FEES.

8.7 EXCLUSION OF ALL OTHER WARRANTIES – TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFOMEDIA, ITS LICENSORS AND AUTHORISED SUPPLIERS ALL DISCLAIM ANY AND ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, THE PRODUCT INFORMATION AND/OR THE INTERFACE. THE LIMITED WARRANTY CONTAINED HEREIN GIVES YOU SPECIFIC LEGAL RIGHTS AND REMEDIES.

8.8 NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL LOSSES – TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INFOMEDIA, ITS LICENSORS AND AUTHORIZED SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, OR EXEMPLARY DAMAGES) , OR ANY LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE SERVICE, EVEN IF INFOMEDIA HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE FORESEEABLE.

8.9 LIMITATION OF LIABILITY. FOR ALL OTHER CLAIMS, INFOMEDIA’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE FEE PAID BY YOU FOR THE USE OF THE SERVICE OR THE INTERFACE IN THE 12 MONTHS PRIOR.

8.10 Equitable Relief: Each Party acknowledges that damages may be an inadequate remedy if the other Party or the Authorized Users violate the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.

9. FORCE MAJEURE

9.1 Neither party shall be liable for any inability to perform its obligations if such inability is due to any cause or event beyond the reasonable control of the affected party, including without limitation acts of war, riots, weather conditions such as storms, floods, electrical power failures) provided that this clause shall not excuse the making of payments as and when they fall due and any obligations pertaining to confidentiality, which must be performed at all times.

10. CONFIDENTIALITY

10.1 You acknowledge and agree that the Service contains confidential information, has significant commercial value to Infomedia and that the disclosure of the contents of the Service or details about use of the Service, other than as expressly permitted by this Agreement, may detrimentally affect Infomedia’s interests and may cause loss and damage.

10.2 Without limiting any other provision of this Agreement, You must take all measures reasonably necessary to preserve and protect the confidentiality of the Service.

11. PRIVACY

11.1 Infomedia may, from time to time, collect and store certain data relating to Your access to and use of the Service (including but not limited to browser “cookies”). By accepting this agreement, You expressly give your consent for Infomedia to collect and use this information for its own internal purposes. collect and use this information for its own internal purposes. Infomedia is committed to safeguarding Your privacy with respect to all personal information collected as per its privacy policy.

11.2 By using Service you may provide us with personal information. This may occur, for example, if we record information about You and the use of the Service, or if you enter information relating to third parties into the Service. Where You provide us with personal information, You must ensure that:

  1. You are permitted to provide us with that personal information; and
  2. You have made any disclosures or obtained any consents necessary under any applicable privacy laws and will comply with all applicable legal obligations relating to privacy, security, integrity, and confidentiality of data collected from a third party), which obligations may include the European Union General Data protection Regulations, Gramm-Leach-Bliley Act and its implementing regulations (GLBA), the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA), the laws of any state of the United States, and the laws of any province of Canada (Applicable Laws).
  3. You will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the security or integrity of the personal information; and (b) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to the individual who is the subject of Customer Data. Each party may disclose Customer Data, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency. These provisions shall apply during the term and after the termination of the End User License Agreement.

11.3 Infomedia shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Your Data or personal information to comply with Applicable Laws and shall facilitate data security obligations with respect to Personal Information in Infomedia’s possession or control to the extent that You are required to comply with the following: (i) the U.K. Data Protection Act 1998; (ii) Directive 95/46/EC of the European Parliament and of the Council and any applicable laws enacted by an EU member state implementing the requirements of the Directive; (iii) the Australian Privacy Act 1988 and National Privacy Principles; (iv) the Canadian Personal Information Protection and Electronic Documents Act; and (v) any amendments and successors to the aforementioned privacy laws, or any newly enacted Applicable Laws regarding privacy. Infomedia may use subcontractors to facilitate its obligations under the Agreement and may transfer Your Data to an overseas jurisdiction. Infomedia shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Your Data or personal information.

11.4 NOTICE TO NORTH CAROLINA DEALERS: THIS END USER LICENSE AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.

11.5 By using the Service and as part of this Agreement, You consent to the Authorized Supplier using e-mail, fax or other means of communication to provide You with information regarding Service or other services that are in use by You or that might be adopted and implemented by You.

12. GENERAL

12.1 Each party shall comply with export control laws in the use of the technology available under this Agreement.

12.2 Any duties, goods and services tax, value added tax, sales tax or any other governmental charge levied in respect of the Service, its delivery or any other goods or services supplied pursuant to this Agreement shall be payable in addition to the Fee payable by You unless You provide exemptions.

12.3 Infomedia may, at any time novate, assign or sub-contract all or part of its rights and obligations under this Agreement. This Agreement may not be novated, assigned or sub-contracted by You without the prior written authorization of Infomedia which shall not be unreasonably withheld.

12.4 This Agreement is governed by the laws of the State of New South Wales, Australia without regard to any laws, treaties or conflicts of laws principles that would apply the law of any other jurisdiction. For any claims or causes of action arising out of this Agreement, the parties agree to submit to the courts of New South Wales, Australia.

12.5 Infomedia reserves the right to update or change the terms, conditions and/or notices for the Service from time to time. You acknowledge and agree that Infomedia reserves the right to make these changes and that You are responsible for regularly reviewing these terms, conditions and notices. Your continued access to or use of the Service after any such change shall constitute Your consent to such change.

12.6 Infomedia shall communicate announcements of general interest by email or by posting on its website or on any relevant landing page, or directly within the Services. Infomedia shall provide Customer with legal notices by email, mail, or courier to the address provided by Customer. Customer shall notify Infomedia if Customer’s address for notice changes. Except as otherwise specified in the Agreement, all notices must be in writing, with account notices sent to accounts-syd@infomedia.com.au and legal notices sent to legal@infomedia.com.au

12.7 This document, together with any supplementary terms, conditions or other extraneous materials, which have been reduced to writing and which form part of an agreement or series of agreements accepted by signature or expressly entered into in connection with the supply of the Service (Supplementary Terms), constitute the entire agreement and understanding between the parties in relation to the use and supply of the Service. To the extent of any inconsistency between this EULA and the Supplementary Terms, the Supplementary Terms shall prevail.